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Dissent Is Patriotic

The Bill of Rights Defense Committee's e-mail newsletter

July 22, 2004, Vol. 3, No. 6


Newsletter Articles:

Let the People Choose
New Resources for Organizers

  • BORDC's voter education materials
  • Recommended documentaries, books
  • White paper on 14 ongoing government data mining programs
  • Companion guide to DOJ's report on its use of USA PATRIOT Act
  • Material support: Testimony by Professor David Cole to U.S. Senate Committee on the Judiciary

Legislative Updates: Freedom to Read Amendment; H.R. 3179
In the Courts and Tribunals: Supreme Court rulings; review tribunals; Lynne Stewart trial; TSA's FOIA exemptions
In Brief

  • Secrecy News: Bill Would Prohibit "Extraordinary Rendition" by CIA
  • Report on Post-9/11 Detentions
  • DOJ Teams Sent to 15 U.S. Cities
  • The September Project

Let the People Choose

Our country's antiterrorism laws and policies can be fair and effective, saving lives while preserving basic rights and freedoms, or they can be political tools that permit politicians to disguise failures as success, giving their constituents a false sense of security. Which will it be?

From Guantánamo Bay to prisons in Iraq, Afghanistan, and container ships abroad, our executive branch has sought to avoid conforming to a well established international ban on torture. Within the United States, a careful reading of the DOJ's "Report from the Field: The USA PATRIOT Act at Work" reveals how the department has exploited its unprecedented powers to conduct surveillance on people with no ties to terrorism, charge them, often force them to accept guilty pleas, and sentence them for long periods, racking up convictions of alleged "terrorist cells" intercepted and immobilized in order to score political points with the general public. (See Companion guide to DOJ's report in this issue.)

Other recent actions and statements by the Administration suggest that we should be prepared for a whirlwind of politically motivated actions featuring the USA PATRIOT Act, national security, and civil liberties:

  • A Bush TV ad called "Patriot Act" painted Senator Kerry as "playing politics with national security."
  • House leadership used dishonorable tactics to convert a 219-201 vote in favor of the Sanders-Paul-Conyers-Otter-Nadler Freedom to Read Amendment into a 210-210 loss. According to C.L. "Butch" Otter (R-ID), a co-sponsor of the amendment, "You win some, and some get stolen" (Washington Post article)
  • Just when the FBI seemed to drop its focus on Arabs and Muslims by warning local police that al-Qaida may recruit non-Arabs, it launched a new campaign to interview Muslims and Arab Americans across the country.
  • Homeland Security Secretary Tom Ridge misled the public last Wednesday when he informed the press that the $102 million CAPPS II program could be considered dead. On Friday, the Washington Post reported that the program has simply been postponed until after the election due to privacy concerns and other controversial program elements.

Politicians' tactics for avoiding an honest, informed national debate about the USA PATRIOT Act and other antiterrorism laws can only succeed if the people let them succeed. So far 341 communities in 42 states (one in five U.S. residents) have already passed resolutions holding their elected representatives accountable for debating the laws and policies and upholding constitutional rights. The Supreme Court rulings on the habeas corpus rights of Guantánamo detainees and U.S. citizen "enemy combatant" Yaser Esam Hamdi are a first step. There are enough of us to complement the Supreme Court's decisions and the resolutions with action and education in our communities:

  • Hold forums, show documentaries, and write op-eds and letters to the editor to support education about these issues in your community.
  • Use our resources to counteract misleading campaign slogans with the truth. BORDC has recently prepared (1) a new white paper on the continuation of TIA and several little-known government data mining programs that threaten our privacy and (2) a reader's guide to accompany the DOJ's "Report from the Field." Let us know what other resources would help you inform members of your community. We may either have the information you need or know where to find it.
  • If you have developed materials that would help others, send them to us at info@bordc.org.
  • Use BORDC's new voter education kit to help voters distinguish among candidates. Don't allow candidates to reduce the critical and complex issues involved in antiterrorism laws and policies to a sound bite.
  • If your community has passed a resolution, hold your elected leaders accountable for upholding it and reach out to other communities, campuses, religious organizations, unions, and professional associations.
  • If your community has not passed a resolution, form or join a community based organization and get started building support for civil liberties in your community. BORDC's organizing toolkit now includes a new set of online tools to help draft your community resolution. Visit our Tools section for a timeline and links to many helpful resources.

The next three months are a critical time for helping voters understand how well or how poorly certain antiterrorism laws and policies are working and ultimately choosing between candidates who are committed to preserving our rights and our safety and candidates who use rhetoric to mask the issues.


New Resources for Organizers

BORDC's voter education materials

To help community organizers engage candidates for local, state, and national office and put them on record so that voters can make informed choices, BORDC has just put together a voter education packet. The packet includes instructions and a timeline for preparing candidate questionnaires and publicizing the results, sample questions to pose to candidates, and resources for more information. We hope you will use these materials and will keep us abreast of your progress. We also welcome your feedback at info@bordc.org. BORDC thanks volunteers Nancy First, Janice Irvine, Helen Ladd, Elaine Scarry, and Judith Solsken for their help developing questions.

Recommended documentaries, books

New additions to our BORDC's Recommended Resources page, which lists recommended documentaries and books:

  • Hate Free Zone Washington documentary and discussion guide. A new documentary by Seattle filmmaker Sandi Cioffi entitled And Justice for Allis now available for purchase through Hate Free Zone Washington. It explores U.S. responses to September 11, their impact on immigrants, civil and human rights, and our character as a people. To purchase a copy of this important video and the accompanying discussion guide, email info@hatefreezone.org. Copies are $25 each.
  • Michael Ratner and Ellen Ray, Guantánamo: What the World Should Know. In this new release from Chelsea Green Publishing, political journalist Ellen Ray interviews Michael Ratner, a human rights lawyer and the president of the Center for Constitutional Rights, which brought the U.S. Supreme Court case, Rasul v. Bush. In the book, Ratner clearly explains the laws pertaining to Guantánamo and gives a vivid picture of what is actually happening to the detainees. Copies of the paperback are $15 USD.

BORDC white paper on 14 ongoing government data mining programs

Many readers remember the controversial Total/Terrorism Information Awareness (TIA) data mining project of last year. Under public pressure, Congress voted to kill the project—or so we thought. A new BORDC white paper by Shannon Anderson -- our National Lawyers Guild Haywood Burns Legal Fellow -- details 14 ongoing government data surveillance projects, including TIA itself.

The paper explains how these projects endanger Fourth Amendment and privacy rights. It also suggests positive avenues for citizen action, which has become increasingly critical in a post 9-11 America. Last week, the Transportation Security Administration bowed to public pressure and announced that it would “reshape and repackage” its CAPPS II program, which is one of the data mining projects described in the white paper. The TSA’s action exemplifies how citizens can encourage greater privacy protection in government programs.

Companion guide to DOJ's report on the use of the USA PATRIOT Act

At a July 13 press conference, Attorney General John Ashcroft unveiled a new DOJ Report from the Field: The USA PATRIOT Act at Work to demonstrate how his department has been using the USA PATRIOT Act to save lives. Unfortunately, the report:

  • Is silent about its use of the controversial sections many of us are most concerned about, such as section 802 (Definition of domestic terrorism), section 215 (Access to records and other items under FISA), section 213 (Authority for delaying notice of the execution of a warrant, AKA "sneak and peek"), and section 206 (Roving surveillance authority under FISA, AKA "roving wiretaps").
  • Hides names and sometimes entire stories that are embarrassing to the DOJ.
  • Inflates the significance of the convictions to mislead its readers into believing that the USA PATRIOT Act has helped take potential terrorists off the street. If this report is the evidence, then the Act has only served to expand penalties of criminals or targets who were caught by other means.

The report contains some tragic stories of people who have received long sentences for harmless infractions, thanks to the USA PATRIOT Act. It also contains some hilarious statements, such as this one concerning the nearly three-year-old "ongoing anthrax investigation": Thanks to a "noteworthy use of section 219,.... investigators saved valuable time by petitioning the local federal judge who was most familiar with the case."

BORDC has prepared a companion guide to the misleading report to help you counteract the report's exaggerations and uncover the real story behind the convictions and unsolved cases. Knowing the facts, we guarantee you will not feel safer from terrorism.

Material support: Testimony by Professor David Cole to U.S. Senate Committee on the Judiciary

Most of the so-called terror-related convictions have to do with a crime called "material support for terrorism" (USA PATRIOT Act section 805). As Professor David Cole explains in his testimony, exercising one's First Amendment rights are sufficient grounds for conviction under this section. Cole has given BORDC permission to post a transcript of his May 5 testimony before the U.S. Committee on the Judiciary on Constitutional Implications of Statutes Penalizing Support to Terrorist Organizations. It is recommended reading for all who want to understand material support and work for its reform.


Legislative Updates

Sanders-Paul-Conyers-Otter-Nadler "Freedom to Read" Amendment to Commerce, Justice, State Appropriations Act of 2005. As many of you know, on July 8, the House defeated the Sanders-Paul-Conyers-Otter-Nadler amendment to the Commerce, Justice, State and Judiciary Appropriations Bill of 2005. The amendment to deny funding for using Section 215 investigations of libraries and bookstores, was headed toward victory, when House leaders held the vote open for an additional 23 minutes and persuaded ten members to change their votes, ending in a 210-210 tie.

To see how your representative voted, go to http://clerk.house.gov/evs/2004/roll339.xml.

  • Please thank your House member if he or she voted in favor of the amendment, and hold your member accountable for voting against the amendment in defiance of the U.S. Constitution. Ask your networks to do the same, and consider writing letters to the editor to reach other constituents.
  • If your House member is not among the 150 cosponsors of H.R. 1157, Congressman Bernie Sanders's Freedom to Read Protection Act, ask him or her to become a cosponsor. For example, the following members who voted in favor of the amendment are not yet cosponsors of H.R. 1157:
    • Republicans: Castle, Johnson (IL), Kirk, Ney, Petri, Porter, and Renzi. (Each should receive special thanks for bravely crossing party lines to support what should have been a nonpartisan amendment.)
    • Democrats: Pelosi, Hoyer, Menendez.
  • Organize an in-district meeting with your representative and other concerned constituents. If your city, town, or county has passed a resolution, consider inviting council members to the meeting as well, and join forces with other communities in the district that have also passed resolutions.
  • Make sure your representative has the facts. We have recorded some of the arguments that House members used to justify votes against the amendment and suggested responses: http://www.bordc.org/July8.htm.

Constituents in Washington state have already been successful: In Washington, Representative Adam Smith, who voted "no," has already been deluged with phone calls from his constituents expressing outrage over his vote. He has since claimed that he may have made a mistake in voting against the amendment and would likely change his vote if possible.

H.R. 3179. There has been no movement of this bill since the June issue of our newsletter.


In the Courts and Tribunals

Supreme Court Enemy Combatant Cases

It would have been hard to miss the Supreme Court’s historic end-of-term rulings limiting the Executive Branch’s authority to detain enemy combatants indefinitely. Rather than repeat the substance of countless news articles on the cases, we have chosen a few quotes from the Justices' opinions that demonstrate their value as precedent.


“There are circumstances in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated.”

- Justice Kennedy, concurring in Rasul v. Bush, the Guantánamo Bay detainee case

“At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law.”

- Justice Stevens, dissenting from the majority opinion in Rumsfeld v. Padilla to remand the decision to a lower court

“[A]s critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.”

“We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

- Justice O’Connor, writing for the majority in Hamdi v. Rumsfeld

Pentagon Establishes Combatant Status Review Tribunals

In a hastily drawn plan, the Pentagon has established Combatant Status Review Tribunals. While Rasul v. Bush mandated that Guantánamo Bay detainees have the right to challenge their detention in US federal courts, the Pentagon appears to have hijacked that process by establishing tribunals completely outside the federal court system. In a fact sheet accompanying the order, the Defense Department borrowed language from the Hamdi opinion, where less than a majority of the court opined that a properly created military tribunal could satisfy Hamdi's due process rights, to legally justify its action.

The Pentagon expects tribunal proceedings to start as early as next week, with about 70 hearings occurring per week.

Trial of Lawyer Lynne Stewart

On April 9, 2002, New York lawyer Lynne Stewart was arrested for allegedly providing material support to terrorists. The trial for these charges began June 21st and is expected to last four to six months. Those in the New York City area are encouraged to attend. For more information, including trial bogs, visit Stewart’s webpage.

Stewart’s Counsel Michael Tigar says, “This case is not about politics in the Middle East, or ‘terrorism,’ or ‘jihad or any of the loaded words that the Bush/Ashcroft administration uses with such abandon. It is about the right to defend.” Throughout her legal career, Stewart has represented political dissidents and people of color, and many believe that the Bush Administration has unjustly targeted her.

Stewart’s case highlights the recent government affront to attorney-client privilege and the right to counsel. For example, you may be aware of a Bureau of Prisons order that allow federal agents to monitor and videotape conversations between lawyers and their clients held in federal custody. Neither the client nor the attorney need to be notified of this monitoring if a court authorizes it. Many legal professionals have criticized Department of Justice regulations as threatening the right to counsel.

Federal Court Judge Calls TSA’s FOIA Exemptions “Frivolous”

Late last month, a federal District Court judge held that the FBI and the Transportation Security Administration (TSA) improperly withheld information that had been requested under the Freedom of Information Act regarding "no fly" lists that restrict airline travel by listed persons. The judge said that the agencies had made "frivolous claims" in order to exempt their information from disclosure. He remarked that some of the information the TSA was trying to withhold "is by no means sensitive security information; rather, it is common sense and widely known. Defendants have offered no justification for withholding such innocuous information." For more information on the case, visit the website of the ACLU of Northern California, which litigated the case.


In Brief

Secrecy News: Bill Would Prohibit "Extraordinary Rendition" by CIA

One of the lacunae in the continuing debate over the proper boundaries of prisoner detention and interrogation is the role of intelligence agencies. Administration officials have declined to address most questions about whether such agencies are subject to the same standards and requirements as regular military interrogators. The best known rendition incident is that of Maher Arar, a Syrian-born Canadian who was diverted to Syria for more than a year of interrogation and torture after changing planes at New York's JFK Airport while returning home from Zurich.

In the face of official refusal to engage in debate on the subject, Rep. Edward Markey (D-MA) has introduced a bill to prohibit the practice of "extraordinary rendition" by U.S. intelligence. "Under the name 'extraordinary rendition', the CIA reportedly sends terrorism suspects, sometimes on the flimsiest of evidence, to foreign countries that are known to employ torture in prisoner interrogation," Rep. Markey said. "This practice is against all U.S. and international law and is a moral outrage, and it must be stopped." For more information, read his June 23 statement and the text of the bill.

To subscribe to Secrecy News, send email to secrecy_news-request@lists.fas.org with "subscribe" in the body of the message.

Report on Post-9/11 Detentions

The Liberty and Security Initiative of the Constitution Project has released a "Report on Post-9/11 Detentions" which documents and investigates the legal basis for detentions since September 11, 2001. The report also discusses the legal rights of detainees and provides the Initiative's suggested principles for detention procedures. Read the full report.

DOJ Teams Sent to 15 U.S. Cities

On June 24, Attorney General John Ashcroft announced that the Department of Justice plans to send teams of federal agents to 15 cities across the country that are considered to have high violent crime rates, including Greensboro, North Carolina; Tucson, Arizona; and Tampa, Florida. The teams will consist of agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives; the U.S. Marshals Service; the FBI; and the Drug Enforcement Administration. Associated Press reports that the investigators plan to "use high-tech surveillance and other techniques" to identify the worst criminals, with a focus on firearms violations, gang activity, illegal drug organizations, and organized crime groups.

Not all of the 15 cities have high crime rates, but nearly all share a commitment to civil liberties: Eleven of the 15 cities have passed resolutions expressing concern about the USA PATRIOT Act, and three are organizing to pass resolutions. To learn more, and to see the full list of cities receiving the teams, read the Associated Press article.

The September Project

Our May newsletter mentioned the 1984+20 Project--a national reading in October of George Orwell's classic 1984 organized by the National Council of Teachers of English to encourage public awareness of the role of civil rights in maintaining democracy and the freedoms of life, liberty and the pursuit of happiness. Others across the country are organizing The September Project in which "people across the nation will go to public spaces to participate collectively and think creatively about our country, our government, and our media" on September 11, 2004. We urge you to consider participating in one or both of these worthwhile national projects to raise awareness, and to encourage your local libraries, teachers organizations, and others to take part.


Support the Work of the BORDC

If you value our work, please help support it with a tax-deductible contribution to the Bill of Rights Defense Committee online or via check or money order.

Your purchase of bumper stickers, buttons, booklets, and Bill of Rights get well cards also help us to cover our expenses. Click here for our catalog, which includes our new button: The Patriot Act? That's SO 1984.


Editor: Nancy Talanian, Director
Managing Editor: Jessie Baugher
Contributing Writer: Shannon Anderson
Bill of Rights Defense Committee, Inc.
8 Bridge St., Suite A
Northampton, MA 01060

Web: http://www.bordc.org/
Email: info@bordc.org
Telephone: 413-582-0110


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